Free Software Matters:
Enforcing the GPL, I

Microsoft's anti-GPL offensive this summer has sparked renewed
speculation about whether the GPL is ``enforceable.'' This particular
example of ``FUD'' (fear, uncertainty and doubt) is always a little
amusing to me. I'm the only lawyer on earth who can say this, I
suppose, but it makes me wonder what everyone's wondering about:
Enforcing the GPL is something that I do all the time.

Because free software is an unorthodox concept in contemporary
society, people tend to assume that such an atypical goal must be
pursued using unusually ingenious, and therefore fragile, legal
machinery. But the assumption is faulty. The goal of the Free
Software Foundation in designing and publishing the GPL, is
unfortunately unusual: we're reshaping how programs are made in order
to give everyone the right to understand, repair, improve, and
redistribute the best-quality software on earth. This is a
transformative enterprise; it shows how in the new, networked society
traditional ways of doing business can be displaced by completely
different models of production and distribution. But the GPL, the
legal device that makes everything else possible, is a very robust
machine precisely because it is made of the simplest working parts.

The essence of copyright law, like other systems of property rules, is
the power to exclude. The copyright holder is legally empowered to
exclude all others from copying, distributing, and making derivative
works.

This right to exclude implies an equally large power to license--that
is, to grant permission to do what would otherwise be forbidden.
Licenses are not contracts: the work's user is obliged to remain
within the bounds of the license not because she voluntarily promised,
but because she doesn't have any right to act at all except as the
license permits.

But most proprietary software companies want more power than copyright
alone gives them. These companies say their software is ``licensed''
to consumers, but the license contains obligations that copyright law
knows nothing about. Software you're not allowed to understand, for
example, often requires you to agree not to decompile it. Copyright
law doesn't prohibit decompilation, the prohibition is just a contract
term you agree to as a condition of getting the software when you buy
the product under shrink wrap in a store, or accept a ``clickwrap
license'' on line. Copyright is just leverage for taking even more
away from users.

The GPL, on the other hand, subtracts from copyright rather than
adding to it. The license doesn't have to be complicated, because we
try to control users as little as possible. Copyright grants
publishers power to forbid users to exercise rights to copy, modify,
and distribute that we believe all users should have; the GPL thus
relaxes almost all the restrictions of the copyright system. The only
thing we absolutely require is that anyone distributing GPL'd works or
works made from GPL'd works distribute in turn under GPL. That
condition is a very minor restriction, from the copyright point of
view. Much more restrictive licenses are routinely held enforceable:
every license involved in every single copyright lawsuit is more
restrictive than the GPL.

Because there's nothing complex or controversial about the license's
substantive provisions, I have never even seen a serious argument that
the GPL exceeds a licensor's powers. But it is sometimes said that the
GPL can't be enforced because users haven't ``accepted'' it.

This claim is based on a misunderstanding. The license does not
require anyone to accept it in order to acquire, install, use,
inspect, or even experimentally modify GPL'd software. All of those
activities are either forbidden or controlled by proprietary software
firms, so they require you to accept a license, including contractual
provisions outside the reach of copyright, before you can use their
works. The free software movement thinks all those activities are
rights, which all users ought to have; we don't even want to
cover those activities by license. Almost everyone who uses GPL'd
software from day to day needs no license, and accepts none. The GPL
only obliges you if you distribute software made from GPL'd code, and
only needs to be accepted when redistribution occurs. And because no
one can ever redistribute without a license, we can safely presume
that anyone redistributing GPL'd software intended to accept the GPL.
After all, the GPL requires each copy of covered software to include
the license text, so everyone is fully informed.

Despite the FUD, as a copyright license the GPL is absolutely solid.
That's why I've been able to enforce it dozens of times over nearly
ten years, without ever going to court. Next month, I'll explain how
enforcement is really done.

*Eben Moglen is professor of law and legal
history at Columbia University Law School. He serves without fee as
General Counsel of the Free Software Foundation. You can read more of
his writing at moglen.law.columbia.edu.